-VCF O'Keefe v. Gillespie et al, No. 2:2011cv02109 - Document 9 (D. Nev. 2012)
Court Description: ORDER Granting 7 Motion to Amend the Petition. Petition, as amended, shall be DISMISSED without prejudice. Denying 3 Motion to Appoint Counsel. Denying 6 Motion for a copy showing receipt and filing of his papers. Certificate of appealability is DENIED. Clerk of Court shall enter final judgment accordingly. Signed by Judge Gloria M. Navarro on 2/2/2012. (Copies have been distributed pursuant to the NEF - SLR)
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-VCF O&#039;Keefe v. Gillespie et al Doc. 9 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 BRIAN KERRY O’KEEFE, 9 Petitioner, 2:11-cv-02109-GMN-VCF 10 vs. ORDER 11 12 13 SHERIFF DOUG GILLESPIE, et al., Respondents. 14 15 This habeas matter under 28 U.S.C. § 2241 comes before the Court on: (a) its sua 16 sponte inquiry into whether the petition should be dismissed for lack of exhaustion and further, 17 as to Ground 3, under the absention doctrine in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 18 27 L.Ed.2d 669 (1971); and (b) petitioner’s motion (#3) for appointment of counsel, motion 19 (#6) for a copy showing receipt and filing of his papers; and motion (#7) to amend the petition. 20 In the original petition, petitioner sought to present constitutional claims in three 21 grounds challenging his pending Nevada state prosecution, including a double jeopardy claim 22 in Ground 1. In the proposed amended petition, petitioner has deleted Grounds 2 and 3 and 23 seeks to proceed solely on the double jeopardy claim in Ground 1. This amendment moots 24 the show-cause inquiry as to Younger abstention, leaving only the exhaustion issue raised 25 in the show-cause order for decision. 26 27 28 Background Petitioner Brian O’Keefe currently is being prosecuted in Nevada state court for the murder of his girlfriend. A third trial on the murder charge currently is scheduled. Dockets.Justia.com 1 In the first trial, the jury found O’Keefe guilty of one count of second-degree murder 2 with the use of a deadly weapon. On direct appeal, the Supreme Court of Nevada reversed 3 and remanded on the following basis: 4 15 Appellant Brian Kerry O’Keefe contends that the district court erred by giving the State’s proposed instruction on seconddegree murder because it set forth an alternative theory of second-degree murder, the charging instrument did not allege this alternate theory, and no evidence supported this theory. We agree. . . . . Here, the district court abused its discretion when it instructed the jury that second-degree murder includes involuntary killings that occur in the commission of an unlawful act because the State’s charging document did not allege that O’Keefe killed the victim while he was committing an unlawful act and the evidence presented at trial did not support this theory of second-degree murder. Cf., Jennings v. State, 116 Nev. 488, 490, 998 P.2d 557, 559 (2000)(adding an additional theory of murder at the close of the case violates the Sixth Amendment and NRS 173.075(1)). The district court’s error in giving this instruction was not harmless because it is not clear beyond a reasonable doubt that a rational juror would have found O’Keefe guilty of second-degree murder absent the error. See Neder v. United States, 527 U.S. 1, 18-19 (1999); Wegner v. State, 116 Nev. 1149, 1155-56, 14 P.3d 25, 30 (2000), overruled on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006). . . . . 16 April 7, 2010, Order of Reversal and Remand, at 1-2 (#1, at electronic docketing pages 10- 17 11). 5 6 7 8 9 10 11 12 13 14 18 The second trial ended in a mistrial after the jury deadlocked on a verdict. 19 Petitioner thereafter moved to dismiss on double jeopardy grounds. The state district 20 court denied the motion, and petitioner filed an original writ petition in the Supreme Court of 21 Nevada. The state supreme court denied relief on the following basis: 22 23 24 25 26 27 28 . . . . O’Keefe claims that pervasive prosecutorial misconduct in the second trial and the State’s efforts to call different witnesses in his upcoming trial operate as an exception to the well-settled proposition that double jeopardy poses no obstacle to a retrial following a hung jury. See Arizona v. Washington, 434 U.S. 497, 509 (1978). We disagree. First, the district court, in resolving O’Keefe’s motion to dismiss, concluded that there was no prejudicial misconduct by the State in the last trial. Moreover, the fact that the district court declared a mistrial because the jury was hopelessly deadlocked remains dispositive. See United States v. Perez, 22 U.S. 579, 580 (1824). We therefore conclude that double jeopardy poses no bar to O’Keefe’s retrial and decline to intervene in this matter. -2- 1 May 10, 2011, Order Denying Petition, at 1-2 (#1, at electronic docketing pages 12-13) 2 (footnote declining to reach non-double jeopardy claims omitted). 3 Petitioner mailed the original federal petition for filing on or about December 20, 2011. 4 He seeks federal intervention to bar the third trial, which is currently scheduled according to 5 the petition for on or about June 11, 2012. Discussion 6 7 As the Court noted in the show-cause order, a defendant in a state criminal proceeding 8 may seek federal intervention in pending state proceedings under § 2241 prior to a judgment 9 of conviction to pursue a double jeopardy challenge to further prosecution. See,e.g., Stow 10 v. Murashige, 389 F.3d 880, 888 (9th Cir. 2004). However, under established law, while a 11 petitioner may pursue a double jeopardy claim in federal habeas proceedings before the 12 conclusion of the state proceedings, the claim raised in federal court nonetheless must have 13 been exhausted in the state courts. See,e.g., Mannes v. Gillespie, 967 F.2d 1310, 1312 & 14 1316 n.6 (9th Cir. 1992). 15 Petitioner urges that the exhaustion requirement applies only to habeas petitions under 16 28 U.S.C. § 2254 challenging a state court judgment of conviction and not to a petition under 17 § 2241 where the petitioner is not in state custody pursuant to a state court judgment of 18 conviction.1 19 conclusion contrary to well-established Ninth Circuit law holding that a petitioner challenging 20 state custody without a judgment of conviction under § 2241 first must exhaust state judicial 21 remedies. Petitioner is incorrect. None of the cases upon which he relies reach a 22 In Stow, the petitioner in fact had presented the same double jeopardy claim to the 23 state supreme court, and he therefore had satisfied the exhaustion requirement. See 389 24 F.3d at 882. The Stow panel held, inter alia, that the district court had erred in applying the 25 deferential standard of review applicable on a § 2254 petition because the petition instead 26 27 28 1 The show-cause order clearly identified petitioner’s petition as one arising under § 2241and cited governing Ninth Circuit law holding that such a petition is subject to the exhaustion requirement. See #4, at 1, line 15, & at 3, lines 7-13. -3- 1 arose under § 2241 and thus was subject instead to a de novo standard of review. Id., at 2 882-83. The Stow panel neither held – nor had occasion to hold - that the petitioner was not 3 required to exhaust state judicial remedies before bringing the double jeopardy challenge in 4 federal court under § 2241. 5 Similarly, in White v. Lambert, 370 F.3d 1002 (9th Cir. 2004), the Ninth Circuit expressly 6 noted that the petitioner sought federal habeas relief “[a]fter exhausting his state court 7 remedies.” 370 F.3d at 1004. Moreover, the Court of Appeals held that White’s petition arose 8 under § 2254 not § 2241.2 Thus, any statements in the White panel opinion regarding 9 whether a § 2241 petition by a petitioner in state custody would or would not be subject to an 10 exhaustion requirement, see 370 F.3d at 1008 & n. 4, constitute pure dicta. Such dicta 11 cannot override prior controlling holdings by the Ninth Circuit that a petitioner pursuing a 12 double jeopardy challenge to a state trial or retrial under § 2241 first must exhaust state court 13 remedies.3 14 In Palmer v.Clarke, 961 F.2d 771 (8th Cir. 1992), the Court of Appeals in fact required 15 that the petitioner exhaust his state judicial remedies, and the State conceded that the 16 petitioner had done so. The Eighth Circuit noted that such exhaustion did not require that the 17 petitioner first undergo a third trial, but the court nonetheless required that the petitioner fully 18 exhaust the double jeopardy claim in the state courts before seeking federal habeas relief. 19 See 961 F.2d at 773-74. Palmer thus undercuts, rather than supports, petitioner’s position 20 on the only issue presently before this Court, the exhaustion issue. 21 22 23 24 25 26 27 28 2 The petitioner in White was not raising a double jeopardy challenge to a state trial or retrial. He instead was in custody under a state judgment of conviction, and he was challenging an administrative decision to transfer him to another prison. The Ninth Circuit held that “§ 2254 is the exclusive vehicle for a habeas petition by a state prisoner in custody pursuant to a state court judgment, even when the petitioner is not challenging his underlying state court conviction.” 370 F.3d at 1009-10. 3 This observation applies with even greater force to the Second Circuit decision in James v. Welsh, 308 F.3d 162, 167 (2nd Cir. 2002), which is cited in White and relied upon by petitioner. Similar to White, James held that the petition in that case arose under § 2254 rather than § 2241. Any statement by the Second Circuit in James as to the applicability of the exhaustion requirement to a § 2241 petition in the circumstances presented in this case thus would be dicta that most assuredly may not override a contrary holding by the Ninth Circuit. This Court is bound to follow the holdings of the Ninth Circuit, not dicta from other circuits. -4- 1 The present case thus is subject to long-established law holding that a petitioner in 2 state custody challenging a state court trial or retrial on double jeopardy grounds first must 3 exhaust state judicial remedies. E.g., Mannes, supra; see also Justices of Boston Municipal 4 Court v. Lydon, 466 U.S. 294, 302-03, 104 S.Ct. 1805, 1810-11, 80 L.Ed.2d 311 (1984) 5 (applying exhaustion requirement to pre-conviction double jeopardy claim). The exhaustion 6 rule applicable to requests for federal pre-conviction intervention in pending state criminal 7 proceedings is grounded in principles of judicial restraint that predate and operate 8 independently of the statutory exhaustion requirement in § 2254. See,e.g., Braden v. 30th 9 Judicial Circuit Court of Kentucky, 410 U.S. 484, 489-92, 93 S.Ct. 1123, 35 L.Ed.2d 443 10 11 12 (1973); Carden v. State of Montana, 626 F.2d 82, 83 (9th Cir. 1980). Under well-established law, O’Keefe’s § 2241 petition thus is subject to the requirement that he first exhaust state judicial remedies. 13 Petitioner contends that he should not be required to exhaust state judicial remedies 14 because the case presents extraordinary circumstances. The Court is not persuaded. The 15 mere fact that petitioner is facing a third trial does not constitute an extraordinary 16 circumstance warranting federal pretrial intervention without exhaustion of state judicial 17 remedies. The state supreme court in fact considered and ruled on a double jeopardy 18 challenge presented in advance of the third trial, but petitioner did not present the double 19 jeopardy claim that he now raises for the first time in federal court to the state supreme court 20 in that challenge. Merely because petitioner wishes to present a double jeopardy challenge 21 pro se that his counsel did not pursue in the state courts does not constitute an extraordinary 22 circumstance. Petitioner must fairly present the double jeopardy claim presented here to the 23 state courts in the first instance, via a procedural vehicle in which the claim will be considered 24 on the merits. 25 Petitioner otherwise concedes – in the original petition, the amended petition, and the 26 show-cause response – that the claim presented for the first time in federal court has not 27 been exhausted in the state courts. The Court’s prior order outlines the substantial difference 28 between the unexhausted claim and the claim presented in state court. See #4, at 4. -5- 1 2 Accordingly, the petition, as amended, will be dismissed without prejudice for lack of exhaustion. 3 IT THEREFORE IS ORDERED that petitioner’s motion (#7) to amend the petition is 4 GRANTED and that the petition, as amended, shall be DISMISSED without prejudice for lack 5 of exhaustion. 6 7 IT FURTHER IS ORDERED that petitioner’s motion (#3) for appointment of counsel is DENIED. 8 IT FURTHER IS ORDERED that petitioner’s motion (#6) for a copy showing receipt 9 and filing of his papers is DENIED. Petitioner automatically receives a notice of electronic 10 filing. If he wishes to have a conform copy of his filings, he must supply the Clerk with a 11 second copy of his filings for this purpose along with the original. Petitioner is not proceeding 12 in forma pauperis, and he must pay the applicable charges for any copies of filings that he 13 requests. 14 IT FURTHER IS ORDERED that, to the extent that a certificate of appealability 15 arguendo is required in this procedural context, a certificate of appealability is DENIED. 16 Jurists of reason would not find the district court’s dismissal of the petition for lack of 17 exhaustion to be debatable or incorrect. 18 19 20 The Clerk of Court shall enter final judgment accordingly, in favor of respondents and against petitioner, dismissing this action without prejudice. DATED this 2nd day of February, 2012. 21 22 23 24 _________________________________ Gloria M. Navarro United States District Judge 25 26 27 28 -6-
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